Human Rights Clinic Releases Report on Impact of Dam Construction on Indigenous Group

October 26, 2010

A report, “Swimming against the Current,” researched and written by faculty and students in the Law School’s Human Rights Clinic details the struggles of Costa Rica’s indigenous Teribe tribe in the face of a proposed dam on the Terraba River, which threatens to flood their lands. One Law School student, Anjela Jenkins, and LLM student Susan Orton, together with a student from the University of Texas at Austin’s Latin American Studies department went to Costa Rica in the spring of 2010 to research the report. Law student Kristian Aguilar, along with Brandon Hunter, one of the original research team members, and Eva Hershaw, another student from the Human Rights Clinic, went to the country for a week in October to present their findings to various organizations.

The El Diquís hydroelectric dam would provide electricity and power to over one million homes in the surrounding area, and has been planned for close to thirty years. Originally planned for the Cajon area, the ICE (Costa Rican Institute of Electricity) moved the location for the dam’s construction to the Terraba in the nineties.

When the dam was first proposed in the seventies, indigenous and non-indigenous local communities held protests and erected blockades in opposition to the project in Cajon, which is on the boundary between the indigenous territories of Boruca and Curre. Over the next thirty years, the Costa Rican government quarreled with the southern communities, gaining international attention in the process, and eventually decided to move the dam construction site.

“Lots of things could result from the report, the most important of which is that those involved in the Diquís project reevaluate their consultation strategy and follow our recommendations,” Brandon Hunter, one of the authors of the report and an MA candidate in Latin American Studies, said. “It could also be that the state continues with its plans or that an infinite amount of other possibilities related to the state ignoring or only partially meeting its obligations to the Teribe. A favorable outcome, of course, would be that the state reevaluates its strategy and includes in the reevaluation the effective participation of the community as outlined in the report.”

According to the report, Teribe tribal members said the government has not consulted them over the proposed project. They claim that ICE has already dynamited some of the mountains in the surrounding area without notifying them, and fear the outcome due to lack of information.

“The report is aimed at a number of groups including state actors in Costa Rica; the media; the community the report is about; and international organizations involved in the project or organizations we believe can have an influence on the project,” Hunter said.

Costa Rican law and various international agreements recognize the right of the indigenous people to own the land they live on. The decision to begin building the dam has not officially been made, but according to ICE, they will start construction when they get approval from the National Environmental Technical Secretariat, probably later this year.

The report emphasizes the right to property as a right of key importance to indigenous peoples in their efforts to preserve their indigenous culture, tradition, and identity. It asserts that the Costa Rican state has failed to consistently provide protection of the Teribe people’s property, even though such protection is required by domestic and international law.

“The fact that the dam would flood IP [Indigenous Peoples] land is the crux of the issue,” Anjela Jenkins said. “International human rights law requires the effective participation of IPs in the decision-making processes for any decisions that may affect them.”

The Teribe people have inhabited lands within Terraba since the eighteenth century. According to the report, there are currently 108 burial sites in the land that will be affected by the dam’s construction.

Costa Rica is a democratic republic, but its indigenous peoples have often had trouble voicing their concerns and maintaining their cultural traditions. However, the government interacts with indigenous people through ADI’s, or Associations for Integral Development, that were established in 1977 after the passing of the Indigenous Law. For many, ADIs have not ensured that indigenous voices are properly heard. Critics have pointed out that ADIs are not traditional indigenous forms of organization.

“Indigenous people enjoy special rights and protections under international human rights law,” Jenkins said. “Rights related to property and environment often play a very substantial role because IPs often have long-standing relationships with the land for reasons as diverse as subsistence, religion, and other culture. Rights related to representation are also big because many IPs in the world are socially and economically marginalized and because things like, say, the conquest [of the Americas] eliminated structures of representation and self-governance that were already in place.”

If the dam is built, the Teribe people will be entitled by international and state laws to be compensated. But because there are problems determining whose land is whose, it is unclear who will receive compensation, according to Jenkins.

“Many of the land problems are the result of non-indigenous folk buying indigenous land illegally, or having title to indigenous land, or the government set aside territory for the indigenous communities sometime back,” Brandon Hunter said. “It’s also hard determining ownership because titles are hard to come by and many people sold land that was theirs without title. In addition, intermarriage between indigenous and non-indigenous folk also makes it hard, especially when the next generation of folk owning the land are non-indigenous. Lastly, indigenous land is communal, meaning not one person owns it, it’s owned by the community. The community determines plots based on whatever they like, but at times these plots have been sold off illegally to non-indigenous folk.”

From her experiences in Costa Rica, Jenkins reports that the people of Costa Rica are split over whether to build the dam at all. Some argue that it will provide electricity to millions of people and alleviate concerns over future power shortages. Others want the indigenous people’s best interests to be represented fairly. And others support the dam’s construction in the hopes that those who are affected receive just compensation.

There is also concern over the time, effort, and impact of the project. According to the report, there are approximately 750 indigenous members of the Teribe people. Three thousand workers are expected to move into the area to build it. Whether the Teribe will be able to maintain their rights and identity and be compensated fairly during and after such a major change remain pressing questions. At least for now, the Teribe have found help at the Law School and University of Texas in making their concerns heard.—Mark Lopez